Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Andrew Dias

Before: Justice S. R. Shamai

Heard on: January 11, March 11, April 6, 2016

Reasons for Judgment released: May 20, 2016

Counsel:

• Mr. C. Leafloor, for the Director of Public Prosecution Service
• Mr. R. MacDonald, for the accused, Andrew Dias

SHAMAI J.:

Background and Guilty Pleas

[1] Andrew Dias entered guilty pleas to two counts of trafficking in MDMA, on January 11, 2016. The offences which he admitted were relatively recent: the offence dates were in June 2015. Certainly, the pleas were entered prior to any preliminary inquiry or trial being scheduled, though subsequent to counsel's review of Crown disclosure and a number of pre-plea meetings with Crown.

[2] I announced at the time that submissions were made that, upon hearing all the submissions and reviewing the exhibits tendered and hearing from Mr. Dias, I was inclined to suspend the passing of sentence and impose a period of probation. I did so on April 6. As this represented a significant departure from the usual range of sentence, I proposed to formulate formal reasons. Unbeknownst to me, my colleague Justice Melvyn Green was days away from releasing his sentencing judgment in the case of R. v. McGill, 2016 ONCJ 138 in which he thoroughly reviewed and analysed the law of sentencing. He concluded in that case, which involved a considerably greater quantity of drugs, he would suspend the passing of sentence. I acknowledge the guidance and support, which his analysis has provided to the conclusions I announced earlier. In light of the facts before me in Mr. Dias' case, the following are my reasons for sentence.

Facts

[3] Andrew Dias was just past his twentieth birthday, an honours student in a business course at Fanshawe College, when he posted a listing online advertising "Molly" for sale. To those in the know, that was an advertisement for the sale of Ecstasy, or MDMA. Mr. Dias told the author of a pre-sentence report that he did this as a joke, after some of the drug was given to him, thinking that no one would respond. After an undercover officer did in fact reply, Mr. Dias made available small quantities of MDMA. He engaged in three such sales, and his pleas relate to two of them. The drugs involved amount to 3.09 and 13 gms. Mr. Dias has no prior youth or criminal record.

Rehabilitation and Personal Circumstances

[4] Prior to entering his plea, Mr. Dias engaged in considerable activity to rehabilitate himself, and to restore himself to good standing in the eyes of the community. He undertook counseling at the Addiction Services of Thames Valley in October 2015. He volunteered with the Junior Diabetes Research Foundation, and with the Salvation Army. In counselling, he identified as not having a current concern with substance abuse, reporting abstinence from his substance of choice. He was referred to the "Precontemplators Education Group", which described as "appropriate for individuals who do not perceive a current problem with their substance use, and who have a third party requesting/requiring their involvement with [the] agency". His file was closed in November 2015, as treatment was deemed complete.

[5] Mr. Dias also tendered a letter from his mother. She described Mr. Dias' early struggles with ADHD, which appeared to hamper his education in the early years of school. With this information, his success at the current time in his college programme gains significance. Mrs. Dias also described the emotional impact, which the commission of the offence has had on her son. In fact, Mr. Dias provided his most recent transcript from his programme at Fanshawe, where notwithstanding the pressure of the pending charges, and the additional demands of counseling and community service, he has maintained excellent grades. Interestingly, the best, in his business programme, is in Project Management.

[6] Mr. Dias may continue on from his programme at Fanshawe to undertake the completion of a business degree at the University of Western Ontario. This requires further commitment to his studies, and as well, his maintaining high grades. He has shown himself capable of overcoming personal challenges in his young life, demonstrating the ability to give back to the community, to perform hard work, and achieve excellent results. Clearly his judgment has shown itself lacking. He is, however, only twenty years of age, emerged from his adolescence by barely two years at the time of the commission of the offence.

[7] Mr. Dias has a strong personal network. Each time he came to Court before me, he was accompanied by both parents, by his twin sister, and by his four roommates, who travelled from Bradford and London to Toronto, to show their support of him.

Sentencing Submissions

[8] Crown takes the position that in light of the offender's youth, his good character and his early plea, along with a very positive pre-sentence report, a sentence of nine months in prison is a fit sentence. On behalf of the offender, a strict suspended sentence or a period of incarceration to be served on an intermittent basis is urged to be appropriate. Counsel points out that but for recent amendments to the relevant law, a conditional sentence would be appropriate. In my view, a period of incarceration does not accomplish the sentencing objectives set out at common-law, nor in the Criminal Code Section 718, Section 718.1, and Section 718.2. A period of incarceration is one, which by definition, is served in prison or in the community. I exclude incarceration as a fit sentence in this case.

Legal Framework: Conditional Sentences and MDMA Classification

[9] I recognise that a conditional sentence is not an option in this case. In 2012, Parliament deemed MDMA to be in Schedule 1 to the Controlled Drugs and Substances Act, moving it from Schedule III, which bears a maximum penalty of ten years' imprisonment. A trafficking offence in relation to MDMA currently is therefore subject to a maximum penalty of life imprisonment. Parliament further deemed in 2012 any offence for which the maximum penalty is life imprisonment to be outside the category of offences, which may be considered for conditional sentence.

[10] Clearly this was a signal from Parliament that MDMA was to be considered as serious a drug, and as harmful to Canadian society as opiates and cocaine and other forms of amphetamine. Through the years since that enactment, Canadian sentencing law has, coincidentally perhaps, reflected a new emphasis on the importance of individualized sentencing.

Suspended Sentences and Sentencing Objectives

[11] The Court in R. v. Voong, 2015 BCCA 285 per Bennett JA discusses the impact of a suspended sentence, in effecting a range of sentencing objectives. The suspended sentence by no means excludes objectives of deterrence and denunciation. In fact, a proceeding on breach of probation, pursuant to suspended sentence, can result in a reconsideration of the entire range of sentencing options available to the Court, on a given offence. The Court cites then-Chief Justice Lamer's reflection, in the case of Proulx (2000) SCR 61, to contrast this situation with a proceeding upon allegation of breach of conditional sentence order: in that situation, the maximum jail penalty has already been set. Arguably, a suspended sentence can be more severe than a conditional sentence order – though many would suggest that as a conditional sentence order is a jail sentence, it is by definition more harsh that a suspended sentence. The court does reflect that the procedure on a breach of CSO allegation is less cumbersome than upon a breach of probation, where the Court is invited to re-consider the sentence; indeed that rarely occurs.

[12] However, that does not prevent the "Sword of Damocles" effect:

A suspended sentence has been found to have a deterrent effect in some cases. Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the "Sword of Damocles" hanging over the offender's head. For example, in R. v. Saunders, [1993] B.C.J. No. 2887 (C.A.) at para. 11, Southin J.A. said:

"Deterrence is an important part of the public interest but there are other ways of deterring some sorts of crime than putting someone in prison who has no criminal record as this appellant did not. The learned trial judge did not turn her mind to whether the deterrence which is important might be effected by certain terms of a discharge or a suspended sentence such as a lengthy period of community service."

[13] Although the Courts have been clear that a suspended sentence may serve the purposes of sentencing more effectively, and potentially more severely, being a daily reminder in life on the streets of restriction on liberty, it is characterized as one which serves the sentencing of objective of rehabilitation, rather than punishment. On the question of effectiveness, Justice Bennett had this to say:

Put another way, a condition need not be punitive in nature in order to achieve deterrence or denunciation.

[14] The question is, then, when will a suspended sentence serve the primary sentencing objective of rehabilitation, in an assessment of priority of objectives of sentencing in a given case?

Sentencing Principles: Proportionality and Parity

[15] The Supreme Court of Canada recently reviewed the priority of sentencing principles, in determining the case of Lacasse: 2015 SCC 64. In paragraph 53 of that decision, Justice Wagner refers to the inherent tension present between the principle of proportionality, which the Court terms as "cardinal" and "fundamental", having constitutional dimensions; and the principle of parity. Both are recited in the Criminal Code as principles of sentencing, in Section 718.

[16] Justice Green, in the recent McGill decision suggests that parity turns on the nature of the offence, thus referable to the nature and quantity of drug. Thus, in considering whether a sentence respects the principle of parity, it is the offence which is primarily in focus. Proportionality focuses more on the offender. In dissent, in the Lacasse decision, Justice Gascon discusses proportionality and recalls the words of Justice Rosenberg in our Court of Appeal, two decades ago in the case of Priest (1996), 30 O.R. 538 (at 546-47):

The principle of proportionality is rooted in notions of fairness and justice…Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with, for the sake of the common good.

[17] I read the reference to the common good as the impact by way of general deterrence. As illustrated in Voong, general deterrence is given effect not only by jail sentences.

Restraint and Restorative Justice

[18] I would refer to two further principles of sentencing enshrined in the Criminal Code. These are more recently added to the statutory principles. Restraint in the use of jail sentences, and restorative justice were added to the Criminal Code in 1996, in Subsections 718.2 (d) and (e). Most commonly considered in latter subsection, in the context of Aboriginal offenders, one must not lose sight of the broad principles within which the specific reference to Aboriginal heritage is a particular focus:

Section 718.2(d): an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

Section 718.2(e): all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders

Proportionality as Fundamental Justice

[19] The Supreme Court of Canada reminds us that "proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter" R. v. Ipeelee 2012 SCC 13 (para. 36). That fundamental principle – proportionality – is "intimately tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions… Proportionality is the since qua non of a just sanction. First the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system." (para 37; emphasis added.) Without ignoring the broader deleterious impacts of dangerous drugs in the community (most recently described R. v. Lloyd 2016 SCC 13 para 26), I note that in this particular case, both acts of trafficking involved an undercover police officer responding to an ad on the internet. The aspect of promoting public confidence in the justice system is, in this case, tied to the prospects of rehabilitation, which can be fostered by a fit sentence in this case. To ignore the hard work, and clear signals of remorse, and willingness to make amends which Mr. Dias has made in this case by imposing a period of incarceration would defeat the principle of fundamental justice appealing to the community's sense of justice. The evidence in this case supports the conclusion that one mistake by a young man, who shows so much promise, ought not be met by a symbolic but likely crushing period of incarceration. This would not be a just application of principle.

Sentencing Ranges and Individualized Sentencing

[20] I would paraphrase our highest Court's pronouncement in its recent decision in the case of Lloyd (supra, para 27). That decision involved mandatory minimum sentences. In my view, the reasoning applies to the application of a range of sentence as mandating incarceration, without permitting the specific conditions of the offender to take sentence outside that "range". I cannot lose sight of the "wide range of potential conduct" caught by a range of sentence. The fallibility of "range" is discussed in greater detail in the McGill decision.

[21] The Court described authoritatively the function of a range of sentence in the case of R. v. Nasogaluak 2010 SCC 6 at 44:

…a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred

Analysis of Offender's Circumstances

[22] Thus in considering Mr. Dias' case, I am mindful that he is a youthful first offender. I note as well, that while I do not have the benefit of expert advice on just what might be inferred from the youthful diagnosis and medical treatment for ADHD, which was characterized by the pre-sentence report writer as contributing to distractibility, and lack of focus. In addition to using medication to overcome that effect, however, it appears that once in college, Mr. Dias began self-medicating, using marijuana to "help him relax, focus and study". The offence occurred during the time that Mr. Dias was at Fanshawe, and he had told the court, that he placed the ad to sell MDMA never thinking it was more than a joke. Obviously, once contacted by the undercover officer, Mr. Dias showed that he was prepared to act seriously on his offer to sell, even though at some level he embarked on the project without any regard for the seriousness of his endeavor. One wonders, whether the circumstances of the ADHD, the medication and the non-medically prescribed drug might have contributed to Mr. Dias' lack of judgment.

[23] Once charged with the offence, however, Mr. Dias had shown every sign of taking his conduct seriously. He has taken steps demonstrating self-awareness, and willingness to reform his faulty approach. His attendance for substance abuse counseling shows this. He has volunteered in the community in two different contexts, both with the Salvation Army and the Junior Diabetes Research Foundation. While engaged in both counselling and community service, he has achieved very high marks in the business program he is enrolled in at Fanshawe, and has qualified to transfer into a prestigious university programme, aligned with his current course. As well, he has maintained summer employment. He has the support of his community: his family – parents and twin sister – and four roommates from Fanshawe were in attendance at the two hearings involved in his sentencing.

Conclusion and Sentencing Decision

[24] My conclusion is clear in this case, that the principles of sentencing, as expounded in the jurisprudence are met, as are objectives of sentencing, by a non-custodial disposition. Placing Mr. Dias in jail, at 20 years of age, a first offender, with some psychological issues he has fought to deal with through his lifetime, and with an admirable record of achievement, not only in contemplation of sentencing but clearly more broadly than that, would be a perversion of the principles the Court is required to serve on sentencing. It would woodenly apply the severe sentencing response of Parliament to the type of drug involved here, with no regard for the context of motivation akin to a prank and a minor quantity of drugs. No doubt, there were multiple acts of trafficking, and trafficking in seriously deleterious drugs. To incarcerate in this case would ignore the fundamental, cardinal objective of proportionality in sentencing. That would be an example of what the majority in Lacasse characterized as overemphasis on general deterrence, which in failing to acknowledge the crime in its context, only serves to punish. To quote the succinct statement in the Gladu e, [1999] 1 S.C.R. 688 decision at paragraph 36: "Prison is to be used only when no other sanction or combination of sanctions is appropriate to the offence and the offender".

[25] In this case, Crown urged a "short sentence" of nine months. Defence asks me to apply the principles of restraint and restorative justice as those which will most effectively achieve the sentencing objectives of rehabilitation and general deterrence, and impose a sentence permitting Mr. Dias to spend his time in a productive manner in the community, either on an intermittent sentence, or by suspending the passing of sentence. Defence points to the particular circumstances of this young offender, upon whom a period of incarceration and removal from the community would be particularly damaging. The doctrine of exceptionality is certainly not strained by using in this case a more principled approach to sentencing. That results in a process of individualised proportionality. The confidence of the community is strengthened when a proportionate sentence, denunciatory in the circumstances but as well intended and effective in returning an individual to a more healthy and contributing role in the community, is imposed by the court. The inflexible use of jail as "tariff", fails the principle just as surely as it claims the name of principle.

[26] Mr. Dias has shown that he is capable of recognizing a serious error, when he made one. His guilty plea was early, his steps to rehabilitate himself and restore his good standing in the community were clear and did not require a court order to be done. His future looks bright. No social purpose can be affected by a stay in jail, not a long stay or a short stay. Terms of probation can ensure that the community has enduring confidence in Mr. Dias actions contributing to the community. I am therefore suspending the passing of sentence, and imposing a lengthy period of probation, in the terms announced when sentence was passed on April 6, 2016.

Released: May 20, 2016

Signed: Justice S.R. Shamai